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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUTONOMOUS SANCTIONS BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Foreign Affairs,
the Honourable Stephen Smith MP)
AUTONOMOUS SANCTIONS BILL 2010
General Outline
The Autonomous Sanctions Bill (the Bill) provides a framework for the
implementation in Australia of autonomous sanctions.
Autonomous sanctions are punitive measures not involving the use of armed
force which a government imposes as a matter of foreign policy - as opposed
to an international obligation under a United Nations Security Council
decision - in situations of international concern. Such situations include
the grave repression of the human rights or democratic freedoms of a
population by a government, or the proliferation of weapons of mass
destruction (WMD) or their means of delivery, or internal or international
armed conflict.
Autonomous sanctions measures are intended to achieve three objectives:
(a) to limit the adverse consequences of the situation of international
concern (for example, by denying access to military or paramilitary
goods, or to goods, technologies or funding that are enabling the
pursuit of programs of proliferation concern);
(b) to seek to influence those responsible for giving rise to the
situation of international concern to modify their behaviour to remove
the concern (by motivating them to adopt different policies); and
(c) to penalise those responsible (for example, by denying access to
international travel or to the international financial system).
They are highly targeted measures, applied only to the specific
governments, individuals or entities (in the form of targeted financial
sanctions and travel bans), or to the specific goods and services (such as
military goods or goods with a WMD dual use), that are responsible for, or
have a nexus to, the situation of international concern. They are applied
so as to minimise, to the extent possible, the impact on the general
populations of the affected countries.
Such measures - either supplementary to, or independent of, United Nations
Security Council sanctions - are likely to play an increasing part in
responses of like-minded countries to situations of international concern.
Australia has actively applied autonomous sanctions as a foreign policy
tool for a number of years, relying on existing instruments, intended for
other purposes. To achieve more effectively the objectives underlying
imposing autonomous sanctions, including the need to participate in
concerted international action involving other, like-minded countries, the
types of measures Australia would wish to implement are likely to go beyond
the scope of these instruments.
The purpose of the Bill is to strengthen Australia's autonomous sanctions
regime by allowing greater flexibility in the range of measures Australia
can implement, thus ensuring Australia's autonomous sanctions match the
scope and extent of measures implemented by like-minded countries. The
Bill will also assist the administration of, and compliance with, sanctions
measures by removing distinctions between the scope and extent of
autonomous sanctions and UN sanction enforcement laws.
The Bill is modelled on the legislation with which Australia implements
United Nations Security Council sanctions, the Charter of the United
Nations Act 1945. It is intended to be a framework under which regulations
are made, with each set of regulations containing the specific measures to
be imposed in response to a particular situation of international concern.
By providing for autonomous sanctions measures to be applied by regulation,
rather than under the Bill itself, the Bill will allow the necessary
flexibility for the Government to respond to international developments in
a timely way. It will also enable the Government to harmonise the
administration of autonomous sanctions and UN sanction enforcement laws,
and simplify compliance arrangements for those entities whose business
requires a regular and active engagement with the operation of such laws.
Financial Impact
There is no financial impact.
NOTES ON CLAUSES
Part 1-Preliminary
Clause 1 Short title
This is a formal clause which provides the citation of the Bill.
Clause 2 Commencement
Clause 2 provides that the Bill (once enacted) commences on the day after
it receives the Royal Assent.
Clause 3 Purposes of this Act
This clause provides that the main purposes of the Bill (once enacted) are
to provide for autonomous sanctions; and their enforcement; and to
facilitate the collection, flow and use of information relevant to the
administration of autonomous sanctions.
Clause 4 Definitions
This clause defines the following terms as used in the Bill (once enacted):
"asset"; "Australia"; "autonomous sanction"; "CEO of a Commonwealth
entity"; "Commonwealth entity"; "designated Commonwealth entity"; "foreign
government entity"; "officer of a Commonwealth entity"; "public
international organisation"; "sanction law"; "State or Territory entity";
"superior court".
Clause 5 Specifying a Commonwealth entity as a designated Commonwealth
entity
This clause provides that the Minister for Foreign Affairs may by
legislative instrument specify a Commonwealth entity as a designated
Commonwealth entity.
A designated Commonwealth entity is an entity involved in the
administration of sanctions laws. Designation of an entity under the Bill
(once enacted) confers on the CEO of that entity certain powers provided
for in Part 4 of the Bill in relation to obtaining and sharing information
for a purposes related to the administration of sanctions laws.
Clause 6 Specifying a provision as a sanction law
This clause provides that the Minister may by legislative instrument
specify a provision of a law of the Commonwealth (including in relation to
particular circumstances) as a sanction law for a purpose stated in clause
3.
Once a law is specified as a "sanction law", the provisions of Parts 3
(offences relating to sanctions) and 4 (information relating to sanctions)
of the Bill (once enacted) will apply to that law.
Clause 7 Extension to external Territories
This clause provides that the Bill (once enacted) extend to every external
Territory.
Clause 8 Act binds the Crown
This clause provides that the Bill (once enacted) binds the Crown in each
of its capacities, but does not make the Crown liable to be prosecuted for
an offence.
Clause 9 Relationship with other laws
This clause provides that the Bill (once enacted) does not limit the
operation of other laws of the Commonwealth so far as they operate to
provide for autonomous sanctions or operate in relation to autonomous
sanctions.
Part 2-Regulations to provide for sanctions
Division 1-Making and effect of regulations
Clause 10 Regulations may apply sanctions
This clause provides that regulations made under the Bill (once enacted)
may make provision relating, amongst other things, to proscription of
persons or entities; restriction or prevention of uses of, dealings with,
and making available of, assets; as well as restriction or prevention of
the supply, sale, transfer or procurement of goods or services. Before the
Governor-General makes such regulations, the Minister for Foreign Affairs
must be satisfied that the proposed regulations will facilitate the conduct
of Australia's relations with other countries or with entities or persons
outside Australia or will otherwise deal with matters, things or
relationships outside Australia.
Despite subsection 14(2) of the Legislative Instruments Act 2003,
regulations made under the Bill (once enacted) may make provision in
relation to a matter by applying, adopting or incorporating any matter
contained in an instrument or other writing as in force or existing from
time to time.
This clause allows the Government the necessary flexibility to apply new,
or amend existing, autonomous sanctions measures in response to
international developments, which can change rapidly. Such flexibility and
responsiveness would not be possible if the specific measures were to be
implemented under the Bill itself.
Clause 11 Regulations may have extraterritorial effect
This clause provides that the regulations may have extraterritorial effect.
Clause 12 Effect of regulations on earlier Commonwealth Acts and on State
and Territory laws
Clause 12 provides that the regulations have effect despite an Act enacted
before the commencement of this clause; or an instrument made under such an
Act (including such an instrument made at or after that commencement); or a
law of a State or Territory; or an instrument made under such a law.
This clause ensures that the fact that autonomous sanctions measures are
applied under regulations (for the reasons set out in relation to clause 10
above) will not prevent them having effect if pre-existing Commonwealth,
State or Territory legislation or legislative instruments would otherwise
conflict with those measures.
Clause 13 Later Acts not to be interpreted as overriding this Part or the
regulations
This clause provides that an Act enacted at or after the commencement of
this clause is not to be interpreted as amending or repealing, or otherwise
altering the effect or operation of, a provision of Part 2 of the Bill
(once enacted) or of the regulations, or authorising the making of an
instrument that does so, unless that Act provides expressly that it, or an
instrument made under it, has effect despite the Bill (once enacted),
despite the regulations, or despite a specified provision of the Bill (once
enacted) or of the regulations.
Division 2-Enforcing the regulations
Clause 14 Injunctions
This clause provides for a superior court, on application by the Attorney-
General, to grant an injunction restraining a person from engaging in
conduct involving a contravention of the regulations.
Clause 15 Invalidation of authorisations
This clause provides that an authorisation (however described) granted
under the regulations is taken never to have been granted if information
contained in, or information or a document accompanying, the application
for the authorisation is false or misleading in a material particular; or
omits any matter or thing without which the information or document is
misleading in a material particular.
Part 3-Offences relating to sanctions
Clause 16 Offence-contravening a sanction law
Clause 16 provides that it is an offence to contravene a sanction law, or
an authorisation (however described) under a sanction law. When committed
by an individual, the offence is punishable on conviction by a maximum 10
years' imprisonment, and / or a maximum fine the greater of 3 times the
value of the relevant transaction or transactions (if this can be
calculated) or 2,500 penalty units. When committed by a body corporate, it
is an offence of strict liability. The offence does not, however, apply to
a body corporate if it proves that it took reasonable precautions, and
exercised due diligence, to avoid contravening the sanction law or
authorisation concerned. The offence for a body corporate is punishable on
conviction by a maximum fine the greater of 3 times the value of the
relevant transaction or transactions (if this can be calculated) or 10,000
penalty units.
This clause ensures that the consequences for contravening Australia's
autonomous sanctions are identical to a contravention of Australian laws
implementing United Nations Security Council sanctions. The penalties are
appropriately severe given the context in which the sanctions laws will
operate. The sanctions laws will restrict the trade in a narrow class of
goods and services, such as military and security goods and services to
specific regimes and financial transactions involving designated members or
supporters of those regimes, that the Australian Government assesses are
facilitating the repression of populations or the commission of regionally
or internationally destabilising acts (including the acquisition or
proliferation of weapons of mass destruction). Contravening such
restrictions is thus directly comparable to the contravention of a UN
sanction enforcement law under the Charter of the United Nations Act 1945
and it is therefore appropriate that such conduct be subject to the same
consequences.
Clause 17 Offence-false or misleading information given in connection with
a sanction law
This clause provides that it is an offence to give information or a
document which is false or misleading in a material particular to a
Commonwealth entity in connection with the administration of a sanction
law, or to another person reckless as to whether that information or
document will be given to a Commonwealth entity in connection with the
administration of a sanction law. The penalty upon conviction is
imprisonment for 10 years, 2,500 penalty units or both. Section 15.1 of
the Criminal Code (extended geographical jurisdiction-category A) applies
to such offences.
This clause ensures, for the same reasons set out in relation to clause 16,
that the consequences for providing false and misleading information in
relation to the administration of sanctions laws are identical to providing
false or misleading information in relation to the administration of UN
sanction enforcement laws under the Charter of the United Nations Act 1945.
Part 4-Information relating to sanctions
Clause 18 CEO of Commonwealth entity may give information or document on
request by CEO of designated Commonwealth entity
Clause 18 provides that the CEO of a Commonwealth entity may, at the
request of a CEO of a designated Commonwealth entity, give that CEO
specified information or documents for a purpose directly related to the
administration of a sanction law, despite any other law of the
Commonwealth, a State or a Territory.
Clause 19 Power to require information or documents to be given
This clause provides that the CEO of a designated Commonwealth entity may,
for the purpose of determining whether a sanction law has been or is being
complied with, give a person a written notice requiring the person to give
the CEO information or documents of the kind, by the time and in any manner
or form, specified in the notice. The person must comply with the notice
despite any other law of the Commonwealth, a State or a Territory. This
clause does not apply to obtaining information or documents from the
Commonwealth or a Commonwealth entity.
Clause 20 Information may be required to be given on oath
This clause provides that the notice referred to in clause 19 may require
the information to be verified by, or given on, oath or affirmation.
Clause 21 Offence for failure to comply with requirement
Clause 21 provides that it is an offence not to comply with a notice given
under clause 19, punishable upon conviction by imprisonment for 12 months.
Section 15.1 of the Criminal Code (extended geographical jurisdiction-
category A) applies to this offence.
Clause 22 Self-incrimination not an excuse
This clause provides that an individual is not excused from giving
information or a document under clause 19 on the ground that the
information, or the giving of the document, might tend to incriminate the
individual or otherwise expose the individual to a penalty or other
liability. However, because of this, neither the information given nor the
giving of the document is admissible in evidence against the individual in
any criminal proceedings, or in any proceedings that would expose the
individual to a penalty, other than proceedings for an offence against
clause 17 (false or misleading information given in connection with a
sanction law) or clause 21 (failure to comply with requirement to give
information or document).
Clause 23 CEO may copy documents
This clause provides that the CEO of a designated Commonwealth entity may
take and keep a copy of a document given by a person under clause 19, but
must return the document to the person within a reasonable time.
Clause 24 Further disclosure and use of information and documents
This clause provides that an officer of a designated Commonwealth entity
may, for a purpose connected with the administration of a sanction law,
copy, make a record of or use any information or document and disclose any
information, or give any document, to another officer of that entity.
A CEO of a designated Commonwealth entity may, for a purpose connected with
the administration of a sanction law, disclose any information or give any
document to a Minister of the Commonwealth, a State or a Territory, or the
CEO of another Commonwealth entity, or a State or Territory entity, or a
foreign government entity, or a public international organisation, or a
person or entity specified by the Minister for Foreign Affairs in an
instrument under this clause. The CEO may only do so if he or she is
satisfied that the recipient of the disclosure will not disclose the
information to anyone else without the CEO's consent.
This clause applies despite a law of the Commonwealth (other than this
clause) and a law of a State or a Territory.
Clause 25 Protection from liability
Clause 25 provides that a person who, in good faith, gives, discloses,
copies, makes a record of or uses information or a document under clauses
18, 19, 23 or 24 is not liable to any proceedings for contravening any
other law because of that conduct or to civil proceedings for loss, damage
or injury of any kind suffered by another person or entity because of that
conduct. This does not prevent the person from being liable to a proceeding
for conduct of the person that is revealed by the information or document.
Clause 26 Retention of records and documents
This clause provides that a person who applies for an authorisation under a
sanction law must retain any records or documents relating to that
application for a period of 5 years from the day on which the application
was made (if the authorisation was not granted) or the last day on which an
action to which the authorisation relates was done (if the authorisation
was granted). Similarly, a person who is granted an authorisation under a
sanction law must retain any records or documents relating to the person's
compliance with any conditions to which the authorisation is subject for
the period of 5 years beginning on the last day on which an action to which
the authorisation relates was done.
Clause 27 Delegation
This clause provides that the CEO of a Commonwealth entity may by written
instrument delegate all or any of his or her powers or functions under Part
4 of the Bill (once enacted) to an employee at the SES or equivalent level.
In exercising powers or performing functions delegated under this clause,
the delegate must comply with any directions of the CEO.
Part 5-Miscellaneous
Clause 28 Regulations
This clause provides that the Governor-General may make regulations
prescribing matters required or permitted by the Bill (once enacted) to be
prescribed, or necessary or convenient to be prescribed for carrying out or
giving effect to the Bill (once enacted).